Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (57 page)

Within a week of signing the National Accord, PNU and ODM representatives reached an agreement that spelled out the parameters, principles, and composition of a Truth, Justice and Reconciliation Commission (TJRC) and committed the parties to create the commission expeditiously.
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After a series of delays, the commission did not begin hearings until April 2011. The delays can be attributed mainly to the coalition government’s foot-dragging, including the withholding of financial support, as well as the controversial appointment of Bethuel Kiplagat as commission chairperson, whom many Kenyans—and a few reports of previous commissions of inquiry—associate with the abuses committed under Moi’s rule, including some that the TJRC would be investigating. As a result, the TJRC will be hard pressed to finalize its report before the next elections, due to be held by March 2013—thereby increasing the likelihood of its politicization during the electoral campaign, potentially fomenting more violence.

The TJRC’s internal divisions and slow pace are not the only factors hampering the commission’s work. The TJRC Act gave the commission an extremely broad mandate: to investigate human and economic rights abuses in Kenya between independence in December 1963 and the signing of the National Accord in February 2008. Among other reservations to the legislation, Kenyan and international human rights organizations criticized the insufficient independence granted to the commission and the government’s central role in determining whether to prosecute or grant an amnesty. Many also believed that the provisions for witness protection and reparations were insufficient or left too vague.
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Though in theory a truth commission can promote reconciliation by allowing individuals to tell their stories, establishing an accurate historical account of abuses, restoring dignity to victims, and providing symbolic recognition and material reparations, Kenya’s TJRC faces many challenges before it is able to achieve any of those outcomes. Making public the crimes of high-profile perpetrators and then granting them amnesties could make victims feel revictimized and even increase tensions.
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The airing of an official “truth,” especially when highly contested, does not
ipso facto
lead to reconciliation—it can in fact
exacerbate local tensions and put witnesses at risk, as the experience of local
gacaca
courts in Rwanda demonstrates.
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Given that the government has withheld payments of the TJRC’s budget, it will probably be even more reluctant to provide victims with compensation. Foreign aid donors are highly unlikely to underwrite payments to individuals.
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Other Processes and Promises

The National Accord commits the coalition government to carrying out a number of other activities, the two most prominent of which are constitutional reform and the review of the 2007 presidential elections. Constitutional reform had been high on the public agenda for at least two decades. It completely dominated the political scene in 2004–05, culminating in a rejection of the proposed draft in a plebiscite in 2005.
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The promulgation of a new constitution in August 2010, after 70 percent of Kenyan voters expressed their support in a referendum, is arguably the most important concrete achievement to date of the National Dialogue and Reconciliation process. The new constitution has the potential to catalyze widespread institutional reforms. The longer-term impact of the new constitution will depend heavily on the government’s respect for constitutionalism and the rule of law, which in turn is subject to its political will.
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Worrisome in that respect was Kibaki’s attempt to appoint a new Attorney-General, Chief Justice, and Director of Public Prosecutions without consulting the prime minister, as the law requires. However, he eventually acquiesced to national and international pressure. A key undertaking will be the overhaul of the judiciary (widely perceived as very corrupt) and the police (responsible for extrajudicial killings with impunity, accord to a UN report), to which the government’s commitment is tepid, at best.
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An important element of the National Accord was the commitment to determine what had gone wrong with the electoral process—thus establishing a definitive account of the spark that ignited the violence—and how to prevent recurrence. The ODM and PNU negotiation teams signed an agreement, on 4 March 2008, on the establishment of an Independent Review Committee, “mandated to investigate all aspects of the 2007 Presidential Election and make findings [sic] and recommendations to improve the electoral process.”
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The commission’s report, issued in September 2008, offered a comprehensive review of procedures and numerous technical recommendations. Among other things, it led to the disbandment of the Electoral Commission of Kenya and the appointment of an interim new one, as well as to electoral reforms, such as redrawing district boundaries. As for its investigations into alleged irregularities in the presidential elections, the commission did not identify any clear patterns of fraudulent practices that would suggest that the incumbent government had systematically acted to steal the elections. This passive endorsement of Kibaki’s victory disappointed many Kenyans and outside observers, including foreign diplomats, who felt that the report did not go far enough when it attributed irregularities to incompetence rather than intent.
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Though the commission
kick-started the reform of electoral procedures and institutions, it did not identify the legitimate winner of the 2007 presidential elections. The commission thus did not contribute to an indirect outcome of reconciliation based on a shared understanding of events. In fact, a finding in favor of either Kibaki or Odinga would likely have reignited conflict, rather than contribute to peacebuilding. The reform of electoral institutions that resulted from the commission will, however, improve the odds of future elections not only being free and fair, but also widely perceived to be so, reducing the odds of large-scale violence.

The National Dialogue and Reconciliation process also included commitments to a number of other longer-term issues, notably in a specific agreement signed by PNU and ODM representatives on 23 March 2008. The statement of principles listed a number of areas of reform that would contribute to sustainable peace over the longer term (agenda item 4), including constitutional and legal reform, land reform, poverty reduction, reduction of regional disparities, employment creation, especially for youth, and the creation of a National Ethnic and Race Relations Commission.
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Of these areas, the coalition government has made good on its commitment to constitutional reform and the appointment of an Ethnic and Race Relations Commission, and has slowly begun judicial reform, which can all be considered direct outcomes of the National Dialogue and Reconciliation process. The remaining issues, however, are tremendous undertakings, some of which—such as job creation and the reduction of poverty levels—have been on the government’s agenda since independence. Their presence in the statement of principles is unlikely in and of itself to lead to much progress, which is unfortunate from a peacebuilding perspective, because those seeking to recruit and mobilize individuals to carry out election-related violence often capitalize on underlying tensions and inequalities (whether perceived or real), as well as the ready availability of people (mainly young men) who could be easily mobilized.

Indirect Institutional Outcomes

The coalition government’s concrete measures described above set in motion a number of other mechanisms and activities that indirectly resulted from the National Dialogue and Reconciliation process. The two most important ones, from the point of view of peace and justice, involve accountability for the atrocities committed, to be obtained locally at a special tribunal or by the ICC in The Hague. Holding perpetrators accountable via retributive justice may be of succor to victims and, at least in theory, be restorative as well. However, convictions would not automatically provide victims with pressing material needs, such as restitution or compensation.

Hybrid Tribunal

After the Waki Commission published its report, the coalition government announced that it accepted the findings and would implement all of its recommendations. The most prominent of these was the proposal to create a Special
Tribunal for Kenya, mentioned above. Two of the tribunal’s three judges and the special prosecutor were to be from other Commonwealth countries. Similar to the Waki Commission that proposed it, the special tribunal’s international personnel would help guarantee its independence and fairness.

Despite three versions of legislation being drafted, the coalition government never actually created the hybrid tribunal. Many MPs opposed the first bill for differing and even opposing reasons. Some were concerned that the legislation contained loopholes that would make it ineffective in the struggle against impunity. A presidential pardon, for instance, could prevent a convicted perpetrator from serving his sentence. Those MPs preferred justice in The Hague, since the accused would be unlikely to unduly influence the ICC process, as they feared would be the case in a Kenya-based tribunal, despite the proposed safeguards of international staff.
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Other MPs opposed the legislation because they feared that the hybrid tribunal
would
be effective and might pursue them or their allies, while the ICC seemed like a distant threat that could be dealt with later. Still others voted against the legislation because they felt the government had not consulted widely enough or allowed sufficient time to debate the bill.
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Despite promises to reintroduce improved legislation to establish a hybrid tribunal, the government never did. When KofiAnnan tired of the Kenyan government’s recalcitrance and prevarications in July 2009, he forwarded the Waki envelope and evidence to Moreno-Ocampo. In response to the government’s inaction, a backbench MP introduced a private member’s bill on the establishment of a special tribunal. A sufficient number of MPs boycotted its reading in Parliament to prevent it from ever achieving the required quorum for debate.
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Despite Parliament’s and Cabinet’s overwhelming expressions of support in public, they privately ensured that the Special Tribunal for Kenya would never be created—keeping in place the tradition of complete impunity for massive crimes.

Still, the public debates on accountability issues, the ultimately unsuccessful struggle to establish a special tribunal, and the evident hypocrisy of elected officials all combined to constitute unparalleled civic education among Kenyans of all walks of life on domestic and international accountability mechanisms and create a sustained demand for accountability.
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They also promoted trust in and calls for the ICC to pursue those bearing the greatest responsibility for the post-election violence.

International Criminal Court

The ICC’s
raison d
’
être
is to pursue grave transgressions of international criminal law in instances where the national government is unable or unwilling to pursue credible local trials, as is the case in Kenya. However, the Kenyan government and the ICC have been dancing an intricate
pas de deux
. Were it not for the Waki envelope and the specter of ICC involvement, it is highly unlikely that the Kenyan government would have embraced the recommendation of establishing a Special Tribunal for Kenya, including the introduction of legislation to do so. In
fact, many Kenyan politicians’ support for the hybrid tribunal mirrored the likelihood of ICC involvement. The higher the probability of ICC action, the more strongly some prominent politicians voiced support for the tribunal—in order to forestall ICC involvement. When the ICC “threat” seemed more distant, the special tribunal seemed less urgent.
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ICC Prosecutor Moreno-Ocampo obtained permission from the pre-trial chamber to open an investigation into the situation in Kenya in March 2010. At his request, the chamber issued summonses to appear to six high-level Kenyan officials. The three suspects in the first case were associated with the ODM (Cabinet ministers William Ruto and Henry Kosgey, as well as radio executive Joshua arap Sang, accused of fanning ethnic hatred). In the second case, all three suspects were linked to the PNU (Uhuru Kenyatta, deputy prime minister and minister of finance; Francis Muthaura, head of the civil service and secretary to the Cabinet; and former head of the police Hussein Ali, subsequently demoted to the position of Postmaster General). The ODM–PNU symmetry is generally understood to be the prosecutor’s attempt to “balance” the accusations in order to show no bias, thus avoiding being accused of a witch-hunt and ensuring a high level of legitimacy for the ICC judicial process, as well decreasing the potential for further upheaval. Nevertheless, some Kalenjin politicians have tried to make political capital out of the fact that Moreno-Ocampo’s three ODM-associated suspects are all ethnic Kalenjin from the Rift Valley, whereas no Luo was accused.

The ICC prosecutor’s public naming of the suspects quickly set in motion a number of efforts to avoid them going to trial in The Hague, mostly conducted while publicly insisting on the government’s complete support for and cooperation with the ICC. Three strategies soon emerged, some concurrently. The first involved the resurrection of the plan to set up a local tribunal (though purely national, not hybrid) that would be able to try the ICC suspects, among others, and thus obviate the need for ICC involvement. This strategy was unlikely to make a difference to the ICC judges, as once the investigations were authorized, the chamber would not normally reverse course. Even if it were possible for the ICC to accept a local tribunal as a substitute for its own proceedings, the tribunal would have to try the same six suspects for the same crimes, and the process would have to be credible, which is a highly improbable scenario. Local trials would depend on the prior reform of the Kenyan judiciary and police—no small or quick task. Credible proceedings would be unlikely, since the politicians’ goal in setting up a local tribunal appears to be evading accountability, not just bringing the process to Kenyan soil.